Meighan and Gains and Ors

[2012] FamCA 27

FAMILY COURT OF AUSTRALIA

MEIGHAN & GAINS AND ORS [2012] FamCA 27

FAMILY LAW - CHILDREN – Parental Responsibility - with whom a child shall live and spend time – application by maternal grandmother and parents for residence - where child’s primary attachment is to his maternal grandmother – child’s relationship with father is well established – child’s relationship with mother has been disrupted and is uncertain – father’s history of abuse of drugs and alcohol – mother suffers from mental illness – mother’s abuse of illicit drugs – evidence to support father’s cessation of drug use – evidence of mother’s non-compliance with medical treatment due to her lack of insight into her own illness – child’s aboriginality – need to protect child from harm – child has problems with speech – unacceptable risk of harm to child to stay in mother’s care which outweighs risk of change of residence to father – mother does not have capacity to meet child’s needs – presumption of equal shared parental responsibility rebutted – orders for child to live with father and to spend time with maternal grandmother conditional on the child having no contact with mother during those periods of time

Family Law Act 1975 (Cth) ss 60CC, 60B

APPLICANT: Mr Meighan

FIRST RESPONDENT: Ms Gains

SECOND RESPONDENT: Ms Mercer

THIRD RESPONDENT: Ms Meighan

INDEPENDENT CHILDREN’S LAWYER: Ticehurst Foat Lawyers

FILE NUMBER: NCC 2827 of 2009

DATE DELIVERED: 2 February 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 29, 30, 31 August,
21 September,
6 & 7 October 2011.

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Burns

SOLICITOR FOR THE APPLICANT: Tranter Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Graham

SOLICITOR FOR THE FIRST RESPONDENT: Braye Cragg Solicitors

COUNSEL FOR THE SECOND RESPONDENT: Mr Weightman

SOLICITOR FOR THE SECOND RESPONDENT: Boyd Olsen Lawyers

COUNSEL FOR THE THIRD RESPONDENT: Mr Hamilton

SOLICITOR FOR THE THIRD RESPONDENT: Burke Elphick Mead

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ticehurst Foat Lawyers

Orders

1. That the father Mr Meighan and the maternal grandmother Ms Mercer have equal shared parental responsibility for the child L Meighan born … August 2007 (‘the child”) in respect of all long term issues with the exception of speech therapy for the child.

2. That the father and maternal grandmother each have sole responsibility for the day to day care of the child when he is in their respective care.

3. That the father may enrol the child for the 2013 school year at a school local to his residence and thereafter both he and the maternal grandmother are restrained from changing the child’s enrolment at school without the prior written consent of the other.

4. That for the first four weeks following the making of these Orders, the child shall live with the father each alternate weekend from 11.00 am Saturday to 5.00 pm Sunday and from 11.00 am Thursday to 5.00 pm Friday each alternate week in the opposite week and spend time with the maternal grandmother for the balance of the time.

5. That for the next four week period following Order 4 herein, the child shall live with the father each alternate weekend from 11.00 am Friday until 5.00 pm Sunday and from 11.00 am Wednesday until 5.00 pm Friday each alternate week in the opposite week and spend time with the maternal grandmother for the balance of the time.

6. That for the next four week period following Order 5 herein, the child shall live with the father each alternate week from 11.00 am Thursday until 5.00 pm Sunday and from 11.00 am Tuesday until 5.00 pm Friday each alternate week in the opposite week and spend time with the maternal grandmother for the balance of the time.

7. That for the next four week period following Order 6 herein, the child shall live with the father each alternate week from 11.00 am Wednesday until 5.00 pm Sunday and from 11.00 am Monday until 5.00 pm Friday each alternate week in the opposite week and spend time with the maternal grandmother for the balance of the time

8. Following the time pursuant to Orders 4, 5, 6 and 7 herein, the child shall live with the father and spend time with the maternal grandmother during New South Wales gazetted school terms each alternate weekend from 3.00 pm or the cessation of school or pre-school on Friday until 9.00 am or the commencement of school or pre-school on Monday and in the opposite week from 9.00 am Monday until 9.00 am on the immediately following Tuesday.

9. That each of the father and maternal grandmother are to keep the mother advised of decisions made about the child including but not limited to the school he attends, medical and dental attention he is to receive, religious instruction and extra curricular activities.

10. The father and the paternal grandmother shall ensure that in 2012 the child regularly attends W Pre-school on not less than three days per week.

11. That each party is restrained from criticising each other and their extended family in the presence or hearing of the child and further each party shall use his and her best efforts to ensure that other people do not so criticise in the presence or hearing of the child.

12. The father shall have sole parental responsibility for arranging speech therapy as needed for the child and shall advise the maternal grandmother:

    (a)       the name and contact details of the Speech Therapist;

    (b)       any exercises or other therapeutic work the child is required to do;

    (c)       the dates and times of appointments for the child.

    AND FURTHER the father shall authorise the Speech Therapist to discuss treatment and progress of the child with the maternal grandmother.

13. Each parent and the paternal grandmother shall keep the other party informed of his/her current residential address and telephone numbers and notify the other party within 48 hours of any change.

14. The maternal grandmother is restrained from allowing the mother to live in any residence in which the child is spending time while ever the maternal grandmother considers that the mother is not compliant with her medication or is consuming illicit substances.

15. The mother is restrained from living in any residence in which the child is living or spending time while ever she is not compliant with her medication; has been consuming illicit substances, or has been directed not to reside there by her mother pursuant to Order 14 above.

16. That the child shall spend time with the mother at such times as the child is in the care of the maternal grandmother at the sole discretion of the maternal grandmother.

17. That the child shall spend time with the paternal grandmother at such times as the child is in the care of or living with the father at the sole discretion of the father.

18. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

19. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meighan & Gains and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC2827 of 2009

Mr Meighan

Applicant

And

Ms Gains

First Respondent

And

Ms Mercer

Second Respondent

And

Ms Meighan

Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. This is a dispute about the parenting arrangements for one child L Meighan (“the child”).  The child is now four and a half years old.  Each of his parents and his maternal grandmother Ms Mercer, have applied for an order for residence.  The paternal grandmother, Ms Meighan, supports her son’s application but seeks to ensure regular time with the child.

2. The child’s primary attachment has been to his maternal grandmother.  His relationship with his father is well established.  His relationship with his mother has been disrupted and is uncertain.

3. Both the child’s parents have had serious difficulties; the mother with her mental health and use of amphetamines, the father with abuse of drugs and alcohol.  The father was assaulted and traumatised as a consequence of associating with criminals.

4. The hearing of this matter was adjourned in February 2011 due to a breakdown in the mental health of the mother.  She suffers from a psychotic illness.  She has had episodic ill health since her teenage years.  She was hospitalised and stabilised due to a community treatment order.  That order has been extended to February 2012.

Background

1. The parties began a relationship in October 2006. 

2. In January 2007 the mother let the father know she was pregnant with their child.

3. The relationship between the parties broke down soon after.  They did not live together or present as a couple.

4. The child was born in August 2007.

5. The maternal grandmother contacted the father to let him know of the birth of his son.  This was the beginning of a pattern of conduct where the paternal grandmother and the father acknowledged each other’s role in the child’s life and cooperated for his benefit.

6. The father asserted that between 2005 and 2010 he ceased using amphetamines, alcohol and finally cannabis.  Drug screens put into evidence corroborate these assertions.

7. An earlier diagnosis for the father of Bipolar was later found to be unsubstantiated.  The father took up the suggestion that he had symptoms consistent with Post Traumatic Stress Disorder and attended a psychologist to good effect.  He is now in a good state of physical and mental health.

8. I accept that the father sought appropriate help to achieve this outcome for the sake of himself, the child and his 16 year old daughter K (the child of a previous relationship).

9. Until late 2008 the father saw the child almost every day.  He did so in the home of the maternal grandmother where the mother lives.  He was involved in the child’s care, feeding, changing and playing.

10. The attitude of the mother fluctuated.  Sometimes she invited the father to visit, at other times she sent abusive and offensive text messages and uttered threats.

11. In late 2008 the mother’s conduct, especially threats directed at K, led to the granting of an Apprehended Violence Order (AVO) on 25 November 2008 for the protection of the father and K from the mother.

12. Between September 2008 and April 2009, the father saw the child on three occasions only and then not at all for many months. 

13. The father made an application to spend time with the child.  Orders were made in the Federal Magistrates Court on 21 December 2009.

14. In August 2010, orders were made in this Court removing supervision and increasing the time between the child and his father to short alternate weekends and four hours each Thursday. 

15. By that time the report of the single expert, Dr R, Child and Family Psychiatrist, had just been released.

16. Dr R’s view was that subject to certain conditions, there could be a week about arrangement between the father and maternal grandmother by 2013, when the child commenced school.  Those conditions were as follows:

    (i)evidence of abstinence from illicit substances;

    (ii)meaningful engagement with mental health services;

    (iii)reasonably stable mental health;

    (iv)the child spending increasing amounts of time with his father.

17. I am satisfied that all those conditions have been met.  However I am not satisfied that a week about arrangement would be in the best interest of the child.

18. Dr R gave oral updating evidence during this hearing.  She reflected on the vulnerability of the child.  His early life was chaotic.  There were poor eating and sleeping routines for him.  The presence of the father was intermittent in his life.  There is a genetic component to the illness and addictions of his parents.

19. The question which Dr R posed was: 

    Which household offers the child the most in security, predictability and attention to his needs, especially specific language problems and lack of socialisation?

20. Further, it was Dr R’s view that when the mother is unwell she gets caught up in psychotic processes and cannot attend (to the child).  The evidence bears out this observation.

21. There is evidence of the mother’s non-compliance with treatment due to her lack of insight into her own illness.

22. I accept the opinion of Dr R that this present period of treatment by a compulsory order may be the one which triggers future compliance by the mother, but it is impossible to know.

23. There is no doubt that the mother loves the child, wants to care for him and does when she is well.  The problem is that when she is mentally unwell, she herself does not recognise that.  She loses focus on the child’s needs without realising it.  She is a risk to the child at such times.  On past history the risk is unacceptable.

24. The maternal grandmother and her partner have been tested to the limit by the behaviour of the mother when she is unwell.  At those times, the mother has resented her mother’s interference in her role as the child’s carer.

25. The maternal grandmother has made every effort to protect the child when his mother’s conduct has been erratic and unhelpful to him.  I accept that she would go on doing so.  However, the cost to the child is exposure to conflict between his mother and grandmother.

Best interest of the child – legal considerations

1. The Court must consider the matters set out in ss 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).

2. There are two primary considerations.  One is the benefit to a child of having a meaningful relationship with both parents.

3. In this case, the child has a relationship with both parents, but his most important relationship has been with his maternal grandmother.

4. The expert evidence, which I accept, is that the child at four will be able to make the transition to primary care by his father provided that he spends regular time at short intervals until the change is established.

5. The objects of the Act reflects the significance of biological parents[1].  However in this case, the mother is unable to care for the child alone and has sometimes been unintentionally neglectful of him during periods of mental illness.  The father was excluded from the child’s life for at least a year, but has strongly re-established the relationship over the past two years.

   [1] Family Law Act 1975 (Cth) s 60B

6. Throughout his life the child has been mainly cared for and well looked after physically by his maternal grandmother.  She has been distracted from meeting some of his needs through the necessity of managing her daughter’s behaviour. 

7. The other primary consideration is the need to protect children from physical and/or psychological harm.

8. The child has been exposed to neglect and family violence which has resulted in physical and psychological harm.  He has not had settled routines or a consistently healthy diet.  He has not had sufficient contact with other children to learn social skills such as playing and sharing.  His speech is problematic, both as to sounds and verbal range.  He has seen his mother, grandmother and step-grandfather involved in angry confrontational scenes, including police involvement.  The need to protect the child from any more of this takes some priority.

Section 60B considerations

1. There are other considerations.  The child is a four year old boy.  His mother is Aboriginal and therefore so is he.  He has important relationships with his maternal grandmother, father, sister K, paternal grandmother and mother.

2. The father and maternal grandmother have a history of willingness and ability to encourage close and continuing relationship between the child and those he loves.  At times the mother has also had this capacity.  At other times she has been actively destructive of the child’s relationship with his father and jealous of her own mother’s role in the child’s life.

3. The change of residence will have an effect on the child.  He will miss, and perhaps be anxious about, his mother and maternal grandmother.  However he will be less exposed to conflict between them, conflict described as “really toxic for a little child” by Dr R.

4. Fortunately the mother is enjoying good health and stability at present.  If she continues to be compliant with medication, that will be a benefit for the child and the relationship between them will flourish.

5. There is a risk that the mother may again refuse medication and become ill.  If the child was living with his mother he would again be at risk.  Another period of instability after he has experienced a safer and more peaceful household would be destructive.

6. It is an unacceptable risk which outweighs the risks of a change of residence to the father, despite his vulnerabilities.

7. The evidence of Dr R was that the child needs a relationship with his mother.  He also needs boundaries and diverse experiences so he can get on with his own life and not worry about his mother.  I have accepted this evidence.

8. The two households are in close proximity.  Changeovers can be from pre-school, school or the home of the maternal grandmother, without undue expense or difficulty.

Parenting capacity

1. The father has developed the capacity to meet the child’s needs.  He has worked to free himself from dependence on drugs and alcohol.  He has sought help to deal with the effects of trauma in his own life.  He has a good relationship with his teenage daughter, despite deficiencies of parenting when she was in his care.

2. The mother does not have the capacity to meet the child’s needs.  She loves him and provides good physical care when she is well.  She has failed to understand the disadvantage for the child of his speech deficiencies.  Her statement, “We can understand him” shows a lack of understanding of the child’s point of view.  Other children cannot understand him.  To learn at school, make friends and be accepted, the child needs to speak clearly and express himself fully.  The mother met her own needs by allowing the child to sleep with her watching TV/DVD’s into the night.  He has not experienced predictable bedtimes.  His diet is restricted.  He is wary of fresh food.

3. The maternal grandmother has largely met the child’s needs.  She may have become so used to bouts of verbal aggression and physical abuse by the mother that she under estimated the effects on the child.  It is equally likely that she did know but was powerless to intervene beyond keeping him physically safe.  She will always be an important figure in the child’s life.

4. The child is an Aboriginal boy.  He is four years old.  His mother is naturally concerned to ensure that he grows up knowing and enjoying Aboriginal culture with other people, not only family, who share that culture.

5. The parenting orders will allow the child to do so.  All parties consented to an order that the child attend W Pre-school in 2012.  That is a good start.  Neither the child’s father nor maternal grandmother, are Aboriginal.  They both in my assessment will assist and encourage the child to understand and participate in his Aboriginal culture.

6. There has been family violence in the child’s household.  The orders are designed to protect the child from further exposure and to ensure that the most important relationships in his life are encouraged.

Parental responsibility

1. When parenting orders are made the Court must apply a presumption that is in the best interests of a child for the child’s parents to have equal shared parental responsibility.

2. In this matter I find that the presumption is rebutted by evidence relating to the mental health of the mother and her behaviour during periods of ill health which satisfies me that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.

1. In circumstances where the maternal grandmother has provided the child’s care, is his primary attachment figure and will continue to be a most important person in his life, it is appropriate for her to share parental responsibility with the father.  In this way the views of the mother can be given expression through her mother.  I am satisfied information about the child’s health, education and overall welfare will be communicated by the father to the maternal grandmother and through her, to the mother.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 2 February 2012.

Associate:   

Date:  2 February 2012